Author: Neil Richards

This morning the Supreme Court handed down its decision in Snyder v. Phelps, No. 09-751, holding that a military funeral protest by the Fred Phelps’ Westboro Baptist Church was protected by the First Amendment, and did not give rise to civil liability under the state law torts of intentional infliction of emotional distress (IIED), invasion of privacy, or civil conspiracy. The case has generated a lot of media attention, in part because it offered a chance to see whether the Roberts Court would continue its trend of retaining or expanding strong First Amendment protections. (In United States v. Stevens 130 S.Ct. 1577(2010), which I blogged about here last year, the Court claimed fidelity to the existing structures of First Amendment law, even though it seems to have expanded corporate speech protections in Citizens United 130 S.Ct. 876 (2010), and cut back on incitement doctrine in Holder v. Humanitarian Law Project, 130 S.Ct. 2705(2010)). Snyder v. Phelps is also notable because the defendant, Fred Phelps, is possibly the most unappealing First Amendment claimant that has made it to the Supreme Court. In an opinion by Chief Justice Roberts, the Court upheld the funeral protest, essentially holding that speech on matters of public concern made peaceably in a public space receives protection even if it causes significant psychological and emotional harm. As the Chief Justice concluded:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

There is a lot to say about this important decision, but a few preliminary observations struck me as especially interesting. First, the holding in the case seems to be correct, at least as a matter of fidelity to existing First Amendment precedent. In Falwell v. Flynt, 485 U.S. 46 (1988), the Court held that IIED suits by public figures had to satisfy the protective actual malice standard of New York Times v. Sullivan, 376 U.S. 254 (1964), continuing the trend of First Amendment cases protecting speech on matters of public concern even if they caused emotional injury. Some observers thought that Snyder was a chance for the Court to halt the trend, since Snyder, the plaintiff in this case, was merely the father of an ordinary soldier killed while serving in Iraq and not a public figure. What’s interesting about today’s opinion is that the Court sidestepped this question entirely, holding that the nature of the speech was a matter of public concern and thus protected. The Court held that the Church’s rather distasteful message – that God hates America and is punishing it for its tolerance of homosexuality, particularly in the armed forces – was principally a commentary on public affairs rather than a private act of harassment against the Snyder family. Again, this is consistent with the broad theme of modern First Amendment law that speech on matters of public concern (especially politics) is entitled to very strong protection, and cannot be regulated or made the subject of civil liability even when (like this speech) it is both offensive to many and causes significant harm.

The second aspect of this case that’s notable is what it says about tort liability and free speech. Dan Solove and I have argued (here) that torts are most threatening to the First Amendment when they allow the state to control the content of public debate. Snyder is certainly consistent with that theory, and it seems to all but rule out liability for IIED when the speech at issue is about a matter of public concern. The Court also ruled that the invasion of privacy (intrusion upon seclusion) claim for funeral disruption violated the First Amendment because the speech was protected, and the captive audience doctrine did not save Snyder’s claim. The invasion of privacy claim is odd, because it seems that the district court in this case mis-applied Maryland law. Although the intrusion upon seclusion tort would be violated (and probably could to impose liability constitutionally) if a protestor disrupted a funeral by entering a church or menacing a gravesite, those facts weren’t present here. (In fact, the concurrence by Judge Shedd at the Fourth Circuit level made exactly this point, but the point wasn’t preserved on appeal). So in reality, the invasion of privacy claim boils down to something like “you hurt my feelings when you picketed the funeral from a public place”; in other words, a classic IIED claim.

There are thus lots of questions about the relationship between tort liability and free speech that the Court refused to decide and remain open. For instance, the Court tells us that speech on “matters of public concern” is protected, which it defines as “a subject of general interest and of value and concern to the public.” But it doesn’t define private speech, so we don’t really know how broad the “public speech” category is. Presumably, because the Court uses a kind of “enquiring minds want to know” standard, it’s a rather broad category, but it’s hard to be sure from this opinion. The Court does hint in a couple of places that personally directed harassment, speech to a small number of people, and the publication of someone else’s sex tape would be “private speech” and more readily amenable to regulation based on their content. In addition, the Court refused to rule on a second IIED claim, one arising from a post on the Church’s website that described the funeral protest in detail. The court noted only that “an Internet posting may raise distinct issues in this context,” and declined to rule on the question. This allows the possibility that the Court could create a separate category of cyber-harassment, though given the overall tenor of the opinion, I think this possibility is unlikely to occur in practice. It is interesting to see the Court treading warily in the Internet speech context, however.

The third notable aspect of this case is Justice Alito’s dissent. Last year in Stevens, he dissented from the Court’s protection of animal cruelty videos, apparently on the ground that certain images are so horrible that society can regulate them. Today, he also seemed outraged by the emotionally harmful nature of the Church’s protest, and would have allowed the state to regulate the protest by holding that the tort actions weren’t protected by the First Amendment. Alito seems willing to approve a per se rule that funerals call for special sensitivity and special protection against “emotional assaults.” But reading this opinion together with his Stevens dissent, it appears that Justice Alito is the most willing member of the current Court to allow regulation of speech based upon its morally objectionable nature or its emotionally harmful content. It will be interesting to see how he rules the next time the Court hears a hate speech case, if only to test his fidelity to this principle. If his vote in that future case is consistent with his vote today, Justice Alito may be the best friend of anyone who seeks a broader protection against hate speech and other words that wound.

Finally, although the case is something of a victory for orthodox free speech theory, there is one note of concern for free speech advocates, which is the opinion’s toleration of “free speech zone” theory. The opinion notes with approval that the funeral protest took place from a free speech zone from behind a protective fence, and notes at the end that even though Phelps’ speech was protected, it would certainly be amenable to possibly aggressive time, place, and manner restriction. If, as Tim Zick suggests in his excellent recent book Speech Out of Doors, spatial tactics have become the new frontier of free speech protection, Snyder v. Phelps possibly moves us even further in that direction, for all of its protection of the funeral protest at issue. So the real message to states from Snyder v. Phelps might be not that lots of speech is protected, but as a blueprint for ways to regulate lots of speech in the future.